TERMS & CONDITIONS
BY AND BETWEEN USER ("YOU") & TEXTABIT, LLCTM("TEXTABIT")
IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THIS WEBSITE OR THE SERVICES PROVIDED BY TEXTABIT. TEXTABIT refers to "us", "we" and "owner" of the Website. The term "You" refers to the "user" of the Website.
TEXTABIT, LLC (TEXTABIT) provides "Text Message Marketing" services ("SERVICES"), which are described in more detail below, to provide You with the ability to collect user mobile numbers and to build, launch and manage text messaging services. TEXTABIT grants you a limited license to access and make non-commercial use only of the Site.
By accepting the "I accept these Terms of Use" button on the sign up/registration page and by completing the registration process, You agree to be bound by all of the Terms and Conditions of Use Agreement and TEXTABIT's Privacy Policy. TEXTABIT reserves the right to amend and update these Terms to the Website. You are encouraged to review these Terms periodically.
Text Message Marketing Services ("Services"). The Services consist of one or more of the following: a web-based interface, access to incoming telephone number or keywords, messaging applications, voice broadcast applications, SMS gateway access, data encryption, data transmission, data access, data storage and, if applicable, synchronization software. TEXTABIT provides MT outbound messages through different routes, and the level of reliability and support for special features varies according to the and communications equipment needed to access the Services, and for paying all access charges (e.g. ISP, telecommunications) incurred while using the Services. Services described in the Website may or may not be available in all countries or regions of the world. TEXTABIT only provides that the text messages You send through the Services are delivered to the route. You are responsible for obtaining and maintaining all computer hardware, software applicable network. TEXTABIT is not in control of the final delivery of the message as this not within TEXTABIT's jurisdiction, and is the responsibility of the mobile telephone carrier.
TEXATBIT sends and receives text messages through major telecommunications companies and mobile network operators. TEXTABIT's ability to control the timing of the transmission of your messages is within the technical restrictions imposed upon TEXTABIT. While TEXTABIT shall use commercially reasonable efforts to send your messages to the applicable network for final delivery to your designated recipients expeditiously, TEXTABIT cannot guarantee a specific maximum delivery time. Delivery times depend on various network and system-related factors among the various entities involved in the transmission of your messages across various networks. Mobile network operators allocate text messages with a default lifetime and any message that cannot be delivered successfully within the lifetime allocated to it will be eliminated by the mobile network operator without any notice. TEXTABIT is not liable to You for any loss incurred by the failure of a message to be delivered. You acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from TEXTABIT for any such non-deliveries. Furthermore, you agree that message and broadcast contents are deemed to have zero value.
Subscriber's Lists and Records. You represent and warrant that the mobile numbers in your subscriber list are from subscribers that have given you permission to send them text messages, either by having those subscribers agree to receipt of text messages, or otherwise opt-in to receipt of such messages. You acknowledge and agree that You will send messages only to subscribers who have given you their express authorization to be contacted and You will update your contacts list immediately in order to remove any phone number that has opted-out from receiving messages from the Services. TEXTABIT will not own any data, subscriber lists, information or material (your "Records") that You submit to TEXTABIT in the course of providing the Services. You will be solely responsible for all your Records, and sole intellectual property ownership thereof. Further, You will be solely accountable for maintaining, securing and storing all of your Records. You acknowledge that TEXTABIT will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of your Records.
Compliance with Laws and Regulations. You acknowledge and agree to comply with all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages transmitted through TEXTABIT. Without limiting the foregoing, You agree to familiarize yourself with the following websites to ensure that any messages and campaigns transmitted through TEXTABIT meet lawful standards:
- - Federal Trade Commission, http://www.ftc.gov
- - Federal Communications Commission, http://www.fcc.gov
- - DoNotCall Registry Info, http://www.donotcall.gov
The foregoing websites are being provided to You for informational use only. You agree that it is your sole responsibility to follow the legal requirements pertaining to your messages prior to using the Website or Services.
You agree to immediately remove from your subscriber list and place on Do-Not-Call ("DNC") status any individual requesting DNC. You shall schedule campaigns responsibly and in a manner that is courteous to the recipients pursuant to local, state, national and international calling time rules and regulations.
You are solely responsible for obtaining any rights or licenses to an data to be included in any outbound messages. If you are no familiar with or uncertain about the legalities of any message, you hereby agree to consult with your attorney prior to your use of the Website or Services.
Non-Commercial Business Purposes. You acknowledge and agree that You will use the Services only for non-commercial business purposes and will not use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased lists; or (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) send messages or operate marketing campaigns containing Prohibited Content or is otherwise involved in any way. Prohibited Content is that involving (a) The Provision, sales or offers to sell the following products or content (or services related to the same): pornography; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons ;(b) Provides, sells, or offers to sell or rent any mailing list; (c) Material that exploits children, or otherwise exploits children under 18 years of age; (d) The disclosure of any personally identifying information or private information about children without their consent (or their parents consent in case of a minor); (e) Material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content; (f) The sale or promotion of any products or services that are unlawful in the location at which the content is posted or received ; (g) The introduction of viruses, worms, harmful code and/or Trojan horses on the Internet; (h) The promotion, solicitation or participation in pyramid schemes; (i) Any libelous, defamatory, scandalous, threatening, harassing activity; (j) Any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence. In addition, TEXTABIT reserves the right to prohibit the use of the Services by any company or site at its sole discretion. You agree to report immediately to TEXTABIT, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this clause. In the event of any suspected violation of this clause, TEXTABIT may immediately disable your access to the Services and suspend your provision thereof
Username and Password. As part of the registration process you will choose your own username and password for your account. You shall provide TEXTABIT with accurate, complete, and regularly updated member profile information. You must ensure that no person other than yourself or your authorized agents gain access at any time to your password and account. You agree to notify TEXTABIT of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. You shall be solely accountable for maintaining the confidentiality of your password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, at TEXATIBT's sole discretion, and you may be reported to appropriate law-enforcement agencies.
Text Message Content. You agree that TEXTABIT is not to be held responsible for the contents and/or accuracy of your messages and TEXTABIT will only transmit them on a basis of good faith that You use the Services in accordance with these Terms. TEXTABIT will not be liable for any misuse of the Services by You. TEXTABIT is not legally responsible for any of the views and opinions contained in any of your messages.
- - You agree to include standard opt-out language on all outbound messages "Txt STOP 2 stop" and "Std msg rates aply".
- - You agree to abide by the advertising and usage guidelines set forth by the Mobile Marketing Association's found at http://www.mmaglobal.com/bestpractices.pdf , including service charge disclaimers in your advertising saying: "Standard Text Message Rates Apply."
- - You warrant that you will adhere to all laws regarding SPAM, including the Federal Can-Spam Act of 2003
Free Trial, Fees and Payment
- Free Trial. If you register for a Free Trial, your Free Trial will terminate upon your use of the free text credit limit.
- Paid Plans. After the Free Trial ends, you can select a monthly plan. The Monthly Fee is billed at the rate shown at time of selection on the pricing page of the website.
- No Contract Required. There is no long-term contract required. Textabit is a month-by-month service, meaning you pay for the service on a monthly basis and can cancel or suspend your account at any time. You will be pre-billed for the month. If you cancel in accordance with the cancellation/termination provisions below, you will not be billed for the next month of service, and we will deactivate your account and all related information and/or files in your account.
- Payment for Services will be made by a valid credit card. You consent to have your credit card charged every thirty (30) days from the date of the original transaction. Fees are payable in US dollars. You acknowledge and agree that you are responsible for paying Fees for all text messages sent through TEXTABIT regardless of whether delivery of such messages to their intended recipients is delivered, prevented or possibly blocked by any third party.
- Charges for Services may include a recurring monthly fee. Monthly plans include a disclosed number of text message credits as well as a disclosed number of rights to keywords. Monthly plan message credits do not carry over from month to month. If monthly allotted message credits reach zero, but the Service requires inbound or outbound messages to be processed, your account will be automatically for each additional message as set forth in the monthly plan described on the pricing page of the website.
Intellectual Property Rights. TEXTABIT may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Services, including the web pages that are part of the Services and the Website. Except as expressly provided herein, your access to the Services and such web pages does not give you any type of license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the Website are the sole property of TEXTABIT or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not modify, alter, create any derivative works, reverse engineer, decompile or disassemble any portion of the Service or Website, including any proprietary communications protocol used by the Service or Website.
Software Rights. This is an agreement for TEXTABIT's Services and You are not granted any type of license hereunder. All software within the Services (the "Software"), and the Services, are and shall remain the sole and exclusive property of TEXTABIT. Accordingly, You acknowledge that TEXTABIT owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States, and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, You will not have or acquire any rights or interest in or to the Software or the Services. You acknowledge that the Software contains proprietary information and trade secrets of TEXTABIT. You will not take any actions inconsistent with TEXTABIT's ownership of each of TEXTABIT's rights in and to the Software. You agree that You will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by TEXTABIT.
Data Protection & Privacy. In order to ensure your compliance with these Terms, we may, from time to time, randomly check the messages that you send. Nonetheless, we are committed to maintaining the privacy of your information, pursuant to our Privacy Policy provided on the Website. Except as otherwise required for your use of the Services as described herein, TEXTABIT does not want you to, and you should not, send any confidential or proprietary information to TEXTABIT via the Website or the email addresses referenced on the Website. You agree that any information or materials that you or individuals acting on your behalf provide to TEXTABIT (other than information required for your use of the Service as contemplated herein) will not be considered confidential or proprietary. By providing any such information or materials to TEXTABIT (other than information required for your use of the Service as contemplated herein), you grant to TEXTABIT an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works and distribute such information and materials, and you further agree that TEXTABIT is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to TEXTABIT. You further recognize that TEXTABIT does not want you to, and you warrant that you shall not, provide any information or materials to TEXTABIT that is defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporates the proprietary material of another.
Warranties. You represent, warrant and covenant to TEXTABIT that: (a) if an individual, You are at least eighteen (18) years old; (b) if an entity, it is a valid company and has full power and authority to enter into this Agreement with legally binding obligations enforceable against it; (c) all information provided by You during the term of this Agreement, is and will be truthful and accurate; (d) your use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) you are not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
Disclaimer. THE USE OF THE SERVICES AND ANY RELIANCE UPON THE SERVICES IS AT YOUR SOLE RISK. TEXTABIT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TEXTABIT DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitation of Liability. TEXTABIT SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE WEBSITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE OR DATA, TEXTABIT IS NOT RESPONSIBLE FOR THOSE COSTS. TEXTABIT'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE WEBSITE OR SERVICE FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU IN THE MONTHLY PERIOD GIVING RISE TO THE FIRST CLAIM MADE.
User Warranties; Indemnification
You warrant and represent to TEXTABIT that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of the Website and Service, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing and Internet marketing.
Indemnification. You hereby agree to defend, indemnify and hold harmless TEXTABIT and its Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all damages, losses, claims, liabilities, settlements and costs (including, but not limited to, reasonable attorneys' fees) arising from any alleged breach of this Agreement, the use of the Services by You, your negligence or intentional misconduct. Your breach of any of its representation, warranties or covenants set forth herein, or Your infringement of any intellectual property rights or other rights of any person or entity. You acknowledge and agree that TEXTABIT has the right to seek damages when you use the Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
Modification of Terms. TEXTABIT may modify and otherwise continually seek to improve the Services and such changes often require an update or revision to these Terms. Accordingly, we reserve the right to change or discontinue any aspect or feature of the Service, as well as modify, change and/or update these Terms, from time to time, as we deem appropriate. Any updates to these Terms shall be posted on this Website, from time to time. You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes and, should you request, we will keep you informed if/when such changes take place. If you do not agree with any such changes, your use of the Service may be cancelled in accordance with the procedures for cancellation set forth in this Agreement.
Termination, Cancellation or Suspension by TEXTABIT. If at any time you breach these Terms, we have the otpion to suspend, terminate and/or cancel your use of the Service and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination or cancellation. We retain the ability to suspend your Services at any stage for any reason we may deem necessary to continue to provide our Services in a way that may be hindered by your status as being a user of our Services, your financial status or the content of the messages originating from you.
Upon any such termination, cancellation and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Services (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Services and TEXTABIT shall have no obligation to you after any termination or cancellation of these Terms.
The provisions regarding ownership, payments, warranties and indemnifications will survive any suspension, termination or cancellation of your use of the Services or Website.
Links to other Websites. The Website may contain links to third party websites. These links are are not being provided to you as an endorsement by TEXTABIT of the contents on such third-party websites. TEXTABIT is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk. TEXTABIT does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such websites. TEXTABIT strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third-parties. All links to the Website must be approved in writing by TEXTABIT, except that TEXTABIT consents to links in which: (a) the link is a text-only link containing only the name "TEXTABIT, LLC"; (b) the link "points" only to www.textabit.com and not to deeper pages; (c) the link, when activated by a user, displays the Website's homepage in a full-screen and in a fully operable and navigable browser window and not within a "frame" on the linked website; and (d) the appearance, position, and other aspects of the link may neither create the false appearance that an entity or its activities or products are associated with or sponsored by TEXTABIT nor be such as to damage or dilute the goodwill associated with the name and trademarks of TEXTABIT or its affiliates. TEXTABIT reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
Security Violations. You are prohibited from violating or attempting to violate the security of the Website and Services and from using the Website and Service to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the Website or Service, host or network, including, without limitation, via means of submitting a virus to the Website, overloading, "flooding", "spamming", "mailbombing" or "crashing"; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any TEXTABIT packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. TEXTABIT may investigate violations of these Terms and Conditions, and may involve and cooperate with law enforcement authorities in prosecuting users of the Website who are involved in such violations.
Force Majeure. TEXTABIT shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any Telecommunications line and/or unavailability of any telecommunications facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of TEXTABIT. In addition, TEXTABIT shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Service.
Miscellaneous. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind TEXTABIT in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys' fees.
Notices. TEXTABIT may provide You with general notices by electronic mail to your e-mail address or by text message to mobile number of record, or by written communication sent by first class mail or pre-paid post to your address of record. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by e-mail or text message. Except as otherwise provided herein, You must give notice to TEXTABIT (such notice shall be deemed given when received by TEXTABIT) at any time by any of the following: letter sent by confirmed facsimile to TEXTABIT in the US at the following fax number: (973)-920-2593; letter delivered by first class postage prepaid mail to TEXTABIT at the following address: TEXTABIT, Attn: Billing Department; 26 Park Street Suite 2044 Montclair New Jersey 07042. Notwithstanding the foregoing; You must provide TEXTABIT with notice of its intention to terminate this Agreement in accordance with the terms and conditions set forth in the clause headed Termination.
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of New Jersey notwithstanding its laws governing conflicts of laws. The parties agree that any action or proceeding brought to defend the rights or enforce the obligations of a party hereto shall be brought in the courts of the State of New Jersey.
Entire Agreement. The terms and conditions of Service are only those stated herein, which shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to Texting are applicable to these Terms in any way and are not to be considered your exceptions to the provisions of these Terms. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by TEXTABIT and may not be modified by course of conduct. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries
Assignment. You may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of TEXTABIT. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement. No Waivers. TEXTABIT's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
Headings. Any headings used herein are for convenience only and will not be given any legal meaning. Electronic Signatures and Contracts. Your use of The Service requires your ability to enter into agreements and/or to make purchases electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS
